Prudential Casualty Co. v. Kerr, 71 So. 979

Prudential Casualty Co. v. Kerr

71 So. 979 | Ala. Ct. App. | 1916

PELHAM, P. J.

(1) The city court of Birmingham, at the time involved in this cause, held one regular term in each year, which commenced on the first Monday in October and ended on the last day of the succeeding September, unless the said last day be on Sunday, and if so, the term ended on the next day preceding. — Acts 1911, p. 58. The first judgment entry in this case is dated the 3rd day of May, 1915. The motion to set aside the second judgment entry, or to correct the same, which is dated the same day, does not appear to have been made until the 8th day of November, 1915, and was overruled on the 13th day of November, 1915. It therefore appears that the term at which the main case was tried had ended prior to the time the motion was made. The court is presumed to have signed the minutes of the term at which the main case was tried upon the adjournment of court.— Code, § 5732. . .

*541(2) There is much strength in the argument that the first judgment entry, having been made in final form by the clerk, pursuant to the memoranda on the trial docket, became and was the judgment of the court until set aside by the court or changed or modified under the direction of the court, and that since Code, § 5782, is only directory and not mandatory, parol evidence should be looked to for the purpose of showing the circumstances under which the first entry was erased and the second entry made; but under similar circumstances the Supreme Court of Alabama has held, in the case of Briggs v. Tennesse Coal, Iron & R. R. Co., 175 Ala. 130, 57 South. 882, that: “When the judgment * * * as last formulated, was entered upon the minutes and the minutes were signed by the judge, it became the judgment of the court, and, after the adjournment of the term of the court, it was beyond the power of the judge to alter or amend the same, ‘except for a clerical error or omission on evidence shown by the record,’ ” and that “parol testimony is not admissible in the proceeding to alter, amend, or correct a record by an amendment nunc pro tunc, which, according to the authorities cited and many others, must rest alone on matter apparent on the record.”

We hold, therefore, that the judgment in this case as last formulated is the judgment of the court, and that the record evidence is not sufficient to amend the judgment nunc pro tunc.

The judgment of the court overruling the motion must be affirmed.

Affirmed.